Friday, September 04, 2015

Kim Davis in Jail; Other Elected Federal Law Breakers Not

UPDATE: MaxRedline has pointed to a great resource on this issue: Law professor Eugene Volokh's analysis in the Washington Post. Read the whole thing. It is very illuminating. But cutting to the chase, here is his conclusion:
So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.
There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.
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Kim Davis
Sean Davis over at the Federalist points out how many federal law breakers in office are still there with no repercussions, while Kim Davis, a Democrat clerk in Kentucky, is in jail. Regarding federal drug laws, immigration laws, and security laws, the Federal government and Federal courts wink at those who defy them.

Colorado, Washington and Oregon elected officials don't have to abide by federal drug laws on marijuana.

Then there are lots and lots of city officials who don't enforce federal immigration laws.

But not a one of these officials have been fined, let alone jailed, by a Federal judge. And they even get federal funds.

Officials who refuse to comply with federal law just because they or their constituents don't want to are okay. But, let a local official refuse to do something for religious convictions on an action that is not even codified in federal legislation (at this point it's just a Supreme Court generic ruling) with no clear requirements or penalties and all hell breaks loose.

The New York Sun editors point out that the U.S. Constitution forbids a religious test for any public office.
Yet the right to the marriage contract is not the only right vouchsafed in the Constitution. There is also the right — just to pick one that is being pressed in this case — to be free of religious tests for public office.
That is the most emphatic statement in the entire American parchment. “No religious test shall ever be required as a qualification to any office or public trust under the United States,” the Constitution says in Article IV. “No . . . ever . . . any.” It’s hard to imagine it being put any clearer. Yet Ms. Davis has been clapped into prison when her claim to protection under the religious tests clause has been heard on but a preliminary basis. Why can’t Rowan County manage to get marriage licenses to all who seek them without forcing the religious county clerk, Kim Davis, to attach her name to them?
We do not suggest this case is easy. But Ms. Davis has been cast into prison despite a law that requires that the government use the least restrictive means whenever it burdens the free exercise of religion. More broadly, wouldn’t all sides feel better were an accommodation to be found? Isn’t it possible for the state of Kentucky to be allowed to find a way to get same sex couples in Rowan and other counties marriage licenses in a speedy and dignified fashion while accommodating a religious clerk? 
As the Sun says, the Supreme Court has required that there be an accommodation for religious belief/practice by requiring a least restrictive means standard (as in the recent Hobby Lobby decision). The import of that is the Federal government must show "that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion." (Burwell v. Hobby Lobby Stores, Inc., pp. 40-45)

The Federal courts have not yet found that all ministers performing state recognized marriages have to perform same sex marriages. In effect those who perform state recognized marriages act as representatives of the state in performing those marriages since the marriages are officially registered with the state. So, they are not much different than a county clerk. There is a least restrictive means out there for a religious exemption. And, of course, not only for people with clear religious beliefs. Most anyone can get ordained in order to perform weddings.

U.S. District Court Judge David Bunning has taken it upon himself to write laws and penalties contrary to the U.S. Constitution which explicitly gives the power of federal legislation only to the U.S. Congress and contrary to U.S. Supreme Court decisions like Burwell v. Hobby Lobby. Though it looks like the dissenters in the Obergefell v. Hodges same sex marriage case (not to mention the majority in the Burwell v. Hobby Lobby case) are not fast tracking what they wrote since none of the justices approved hearing her emergency appeal (an emergency stay requires five justices). But, we'll see what happens when the case is actually presented to the Supreme Court on appeal.

Among the Republican presidential candidates I've leaned toward, Carly Fiorina is backing the jailing of Davis. Strike one. Ben Carson is silent. Ted Cruz is clearly saying jailing Davis is wrong. Good for him.

So, you see, certain local officials who break laws are OK. But, others go directly to jail; do not pass Go; do not collect $200. All animals are equal but some are more equal than others if they agree with the opinions of those in power.

Other information on the case here.


MAX Redline said...

What I find among the most amazing of revelations in this whole stupid hornet's nest is that the woman involved is a Democratic. I mean, really, who'd have ever seen a Democratic invoking religious beliefs?

Nonetheless, this is one she should give up on - just don't sign the documents; I think that's the easiest path to take. Even a Democratic, if she claims religion, is of no value in our current Leftist/secular society. If you want to call it a society.

T. D. said...

Well, she is from Kentucky. Sometimes people in the southern and border states get confused about what the Dems stand for.

I guess by law her name has to appear on all marriage licenses issued even if one of her subordinates signs it. Seems like an easy fix to have either the governor or (better) the legislature just set up a system where the elected clerk's name doesn't have to be on the license in cases where a religious exemption applies. Sort of like conscientious objectors don't have to do all the things regular inductees do in the army or people who religious objections don't have to "swear" in court. It's such an easy step. But, the left and the judge involved don't want easy steps. They want to intimidate and "teach a lesson" to anyone who doesn't agree with them.

MAX Redline said...

Everybody has a right to disagree with a law, TD, and if they disagree strongly, then they should work to change it. But nobody (except Obama, Lois Lerner, etc.) has the right to ignore a law simply because they disagree with it. Her lawyer compares her to Dr. Martin Luther King, Jr. because MLK paid the price for his decisions. But she's not any MLK - she's more like George Wallace (who was also a Democratic).

Maybe she assumed that, as a Democratic, she could just ignore what is now, for better or worse, the law of the land. Well, she was wrong. And you know, there's that old "Let he who is without sin cast the first stone" thing: she's on her fourth marriage, had two kids out of wedlock, but that's all okey-dokey because she's found God. Hey, good for her. But she must realize that what she did in the past was no more moral than what homosexuals are doing today. She should give them their chance to come to God in their own time, just as she did.

T. D. said...

I see your point, and all things being equal I would partially agree. But, all things are not equal. Oregon is going after a judge (Marion County Circuit Judge Vance Day) who stopped doing marriages (a voluntary act for his position) when same-sex marriages were okayed in Oregon. The whole point is to make people do what those in power want whether they have a conscientious objection or not.

I say "partially" agree because I do believe in workarounds for people who have deep-seated religious or conscience objections to carrying out an act. I am totally for accommodations for conscientious objectors (probably the most serious lapse in public duty because other people are required to risk their lives in battle and these people can have alternative civil duties far from harm).

I don't agree that because someone has done something wrong in the past they can't claim the right not to facilitate other people's bad actions. Shoot, I've lied and stolen in the past (truth be told, still lie from time to time over stupid things). That doesn't mean I should have to facilitate other people's lies or thefts. Or further afield, other people's drug taking, adultery or child molestation. You should stand for right no matter what you have done in the past (or are doing presently).

That doesn't mean saying other people can't change or not giving them the chance to change. It just means not facilitating (and even sometimes not ignoring) their wrong actions.

I'm saying Kentucky (and Oregon) should facilitate the ability for people to get same-sex marriage from people who have no religious or moral objection. And there are lots of those people around. It shouldn't be tough. They have (mostly) done it for doctors and nurses regarding performing abortions. They should do it here too.

But, they won't because this is about making people agree with them and do what they say whether or not it's necessary to do so or not.

MAX Redline said...

I agree with your point about making people do what they're told. And Judge Day does not have to perform marriages, so the state has no business going after him. In the case of the county clerk, however, her religious objections have no place; she is required to perform certain legal duties, and if she doesn't want to do that on religious grounds, she's free to resign and practice her religious beliefs as she sees fit.

But she wants it both ways: she wants to keep her $80,000 a year job, yet not fulfill the conditions of employment to which she agreed. She is free to resign the position, which would mean that she would not be enabling behavior that she - and many others - view as abhorrent. I've done that very thing in the past, though on ethical grounds, rather than claiming God.

In my view, you can follow your Conscience, or you can push to retain your cushy job - not both. It seems to me that she's going for the latter.

T. D. said...

Consider that marriages are just a small part of her job. And in the past there was no problem with that part of her job and her conscience. It's not exactly equivalent, but consider a doctor who does all sorts of medical procedures. Then one day the law changes to make abortion legal. And it's added to standard medical services. Should he have to quit being a doctor if he believes killing a baby in the womb is wrong and thus won't give that medical service?

I think there is more nuance here, and I would hate to see the day come when all county clerks have to believe a certain way (have a de facto religious test) in order to be county clerks.

I'm still trying to shake this out. But, I don't like the idea of an America where people have to choose between their job and their faith. I believe in accommodation. We have found workarounds in so many other areas. Why not in this one too?

As you know, Judge Bunning found a work around for Kim Davis' son who is a clerk in her office and refuses to participate in same-sex marriage licenses.

MAX Redline said...

ZZ left an interesting link at Redline:

In the fine print, it turns out that she wasn't against gay marriage, she just didn't want her name on the license.

Here's a piece by Eugene Volokh, long-time law-blogger (Volokh Conspiracy - looks like he moved):
[WA Post: "When does your religion legally excuse you from doing part of your job?"]

The plot thickens.

T. D. said...

Wow! First rate analysis, Max. Thanks for the link. I'm going to post it as an update.